Magray v. Shalala, Civ. A. No. 93-C-257.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtTERENCE T. EVANS
Citation880 F. Supp. 1278
Docket NumberCiv. A. No. 93-C-257.
Decision Date30 March 1995
PartiesLois MAGRAY, Plaintiff, v. Donna SHALALA, Secretary of Health and Human Services, Defendant.

880 F. Supp. 1278

Lois MAGRAY, Plaintiff,
Donna SHALALA, Secretary of Health and Human Services, Defendant.

Civ. A. No. 93-C-257.

United States District Court, E.D. Wisconsin.

March 30, 1995.

880 F. Supp. 1279
880 F. Supp. 1280
880 F. Supp. 1281
Craig J. Hanson, Legal Services of Northeastern Wisconsin, Inc., Sheboygan, WI, for plaintiff

Charles Guadagnino, Asst. U.S. Atty., Milwaukee, WI, for defendant.


TERENCE T. EVANS, Chief Judge.

Magistrate Judge Patricia Gorence has issued a decision recommending that I deny the Secretary of Health and Human Services' motion for summary judgment, grant Ms. Magray's motion for summary judgment, and reverse and remand this matter to the Secretary for further proceedings. The Secretary has filed an objection to Judge Gorence's recommendation. Reviewing the recommendation in toto and reviewing de novo those portions to which the Secretary objected as required under 28 U.S.C. § 636(b)-(1), I find that the magistrate judge's decision is correct as a matter of law and I adopt her recommendation.

The facts and procedural history of this case have been discussed in detail on a number of occasions. I shall not belabor them further here.

The crux of the magistrate judge's recommendation, and the portion with which the Secretary takes issue, is her installation of a legal standard which an administrative law judge must apply when evaluating whether a particular claimant should be declared disabled under section 12.05(C) of the listing of impairments. Section 12.05(C) states that a claimant is disabled when he or she has:

A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function.

20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, § 12.05(C). In her recommendation, Judge Gorence states that an ALJ is not free to apply whatever standard he chooses, or to operate without a standard when he determines whether a claimant has a physical or other mental impairment that limits her functioning. Judge Gorence states that the ALJ must determine if the claimant's impairment "had more than a slight or minimal

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effect" on her ability to perform work-related functions before he may make such a determination

Judge Gorence notes that there are no opinions from the court of appeals for this circuit which have addressed the meaning of the second prong of the 12.05(C) standard. However, the magistrate judge also notes that the courts of appeals for a number of other circuits have addressed this meaning. These courts have held that an "impairment" imposes a "significant work-related limitation" on a claimant when its effect on the claimant's performance of work-related functions is "more than slight or minimal." The magistrate judge believes these holdings were appropriate and that such a standard should be used in this circuit.

If this standard applied to Ms. Magray's case an ALJ would need to determine whether her personality disorder had more than a slight or minimal effect on her ability to perform before he could decide whether she was disabled. As Judge Gorence notes, the ALJ made no such determination. In fact, the ALJ made no reference at all to any legal standard. Accordingly, the magistrate judge found that it was impossible to tell whether the ALJ had committed an error of law. Therefore the magistrate judge recommended that the case be remanded to assure that the ALJ applied the proper legal standard. See Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir.1989).

In her objections to Judge Gorence's recommendation the Secretary argues that the magistrate judge may not require the ALJ to apply a particular legal standard during his 12.05(C) determination of disability. According to the Secretary, such a requirement contradicts acquiescence ruling 93-1(4) (Apr. 29, 1993) (AR 93-1(4)).

Moreover, the Secretary notes that the magistrate judge did not cite AR 93-1(4) in her recommendation. Thus, according to the Secretary, by failing to acknowledge a "relevant ruling," Judge Gorence's recommendation stands in opposition to Allen v. Sullivan, 977 F.2d 385 (7th Cir.1992). Therefore, the Secretary says, the recommendation should be ignored. In support of her argument the Secretary focuses on language in the Allen decision which states that courts should not rely on a Seventh Circuit opinion when that opinion contradicts a social security ruling of which the court was apparently unaware. (Allen, at 390). The Secretary then extrapolates from this language to the conclusion that I cannot rely on Judge Gorence's recommendation because it contradicts an acquiescence ruling which Judge Gorence does not cite.

Such an extrapolation is unwarranted for a number of reasons. First, as Ms. Magray notes in her summary judgment reply brief, acquiescence rulings and social security rulings are entirely different animals. Holdings that apply to social security rulings generally do not apply to acquiescence rulings. Second, both the Secretary and Ms. Magray fully addressed AR 93-1(4) in their briefs. Thus, I can safely assume that Magistrate Gorence was aware of AR 93-1(4).

Third, the magistrate judge's recommendation does not contradict AR 93-1(4). AR 93-1(4) states: "Agency policy is that the adjudicator in each case decides whether an impairment constitutes a significant work-related limitation of function...." AR 93-1(4) at 3. Judge Gorence's recommendation does not prevent the adjudicator from deciding on a case-by-case basis whether an impairment constitutes a significant work-related limitation. Judge Gorence's recommendation simply requires the ALJ to apply an articulated legal standard when making his case-by-case determination.

According to AR 93-1(4), such a requirement is not inappropriate. AR 93-1(4) states that "In the Fourth Circuit, the rule has evolved that an inability to do one's past relevant work due to the additional impairment meets the `additional and significant work-related limitation of function' requirement of section 12.05(C) of the regulations." Id. Judge Gorence's recommended requirement is a similar evolution of 12.05(C).

Finally, the Allen court did not hold, as the Secretary seems to suggest, that a social security ruling can overrule a decision of the court of appeals. In Allen the court of appeals refused to follow Nelson v. Secretary

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of Health & Human Services, 770 F.2d 682 (7th Cir.1985) (per curiam), because the relevant portion of the decision had already been overturned in DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir.1989), and because the Nelson court was unaware of the social security ruling

Accordingly, I find that Judge Gorence's decision is correct as a matter of law. I adopt her recommendations. Because I believe that Judge Gorence has skillfully set forth the reasons for her recommendations, I incorporate her opinion as an attachment to this order and submit both for publication.

As a mandate, IT IS ORDERED that Ms. Magray's motion for summary judgment is GRANTED. The previous determination of the Secretary is reversed and the case is remanded to the Secretary for further proceedings consistent with this opinion and the magistrate judge's recommendation.

IT IS FURTHER ORDERED that the Secretary's motion for summary judgment is DENIED.


GORENCE, United States Magistrate Judge.


This case, which has been referred to this court for recommendation by Chief United States District Judge Terence T. Evans pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03(a) (E.D.Wis.), is before the court following supplemental proceedings before the Secretary of Health and Human Services (hereinafter referred to as Secretary). It was remanded pursuant to the January 23, 1992, order of Judge Evans adopting the November 22, 1991, recommended decision of United States Magistrate Judge Aaron E. Goodstein.

In that recommendation, Magistrate Judge Goodstein concluded that the case should be remanded for further proceedings because the Administrative Law Judge (hereinafter referred to as ALJ) did not adequately develop the record regarding the plaintiff's capacity to meet the basic mental demands of competitive remunerative unskilled work. Specifically, he found that the record did not adequately address the plaintiff's ability to function under the demands of the workplace, rather than under the demands of a household setting. Magistrate Judge Goodstein further noted that it might be necessary to seek clarification from Peter J. Kores, Ed.D., or additional evaluation by a mental health expert. The court also noted that the opinion of a vocational expert would prove useful. Furthermore, if it appeared that the plaintiff's mental capacity significantly diminished her available employment opportunities at the unskilled level, it would be improper to rely upon the medical-vocational guidelines and the testimony of a vocational expert would be necessary. (Tr. 45).

The plaintiff, Lois Magray, now seeks judicial review of the Secretary's final decision denying her May 10, 1988, application for Supplemental Security Income benefits under the Social Security Act, 42 U.S.C. § 405(g). The Secretary filed a transcript of the supplemental proceedings, and the parties have filed cross motions for summary judgment which are ready for resolution and will be addressed herein.


The procedural history of this case is set forth in Magistrate Judge Goodstein's November 22, 1991, recommendation to Judge Evans. Upon remand, the ALJ obtained an additional mental consultative examination and conducted a supplemental hearing on April 10, 1992.

The plaintiff appeared, represented by a paralegal, and testified. An attorney who was employed at the same legal services...

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